1901176 (Migration)

[2020] AATA 4252

1901176 (Migration) [2020] AATA 4252 (1 October 2020)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901176

MEMBER:Nathan Goetz

DATE OF DECISION:  1 October 2020

DATE CORRIGENDUM

SIGNED:7 October 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The front page of the decision record incorrectly states that the Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa. This is a result of a clerical error, noting that paragraph 43 of the decision record and the reasons contained in the decision make it clear that the Tribunal is satisfied that the visa applicant meets cl.600.211 of Schedule 2 to the Regulations.

The front page of the decision record is corrected to read that:

The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

cl.600.211 of Schedule 2 to the Regulations.

Nathan Goetz
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901176

MEMBER:Nathan Goetz

DATE:1 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 01 October 2020 at 9:32am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to remain or return – family members in Australia and home country – husband and adult child with disability in home country – sponsor’s sister’s and mother’s protection visa applications – sponsor’s offer of security deposit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a [Age] -year-old female who claims to be a citizen of Iran. She lodged the visitor visa application on 8 November 2018.

3. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. On 15 January 2019 the delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211.

6. On 17 January 2019 the review applicant applied to the Tribunal for a review of the refusal decision. The review applicant sponsored the visitor visa. The review applicant is a [Age]-year-old Iranian born Australian citizen who is the niece of the visa applicant. The review applicant’s mother is the sister of the visa applicant.

7. The review applicant appeared at the Tribunal by telephone on 9 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone in Iran. The hearing was conducted in English except for when the visa applicant gave her oral evidence. During that time, the hearing was conducted with the assistance of an interpreter in the Persian and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. The visitor visa application form was generated on 8 November 2018. The visa applicant identified herself as a married woman with one child. She sought a visa for up to three months to travel to Australia. The visa applicant lives in [Address] in Tehran. She was asked whether she would visit any relatives, friends or contacts while in Australia. She indicated yes. She detailed that she would visit her niece, who is the review applicant. She did not declare that she would visit any other friends or relatives in Australia. The sponsorship form was lodged on the same day.

10. The visa applicant provided the department with a number of documents. In relation to the visa applicant, these included an identity certificate, a birth certificate, marriage contract, her passport, her husband and child’s birth certificates, a long term deposit certificate, a transaction history of a bank account, a vehicle ownership card, a title deed for a house in Iran, insurance certificate and documentation concerning the visa applicant’s only child in Iran who suffers from [a physical condition] and mental disability.

11. The review applicant, who was the sponsor of the visa to come to Australia, provided a two-page letter to the department. The documents provided in relation to the sponsor included a home loan transaction record for the [Bank 1], another account with the same bank that shows a credit of $21,964.23, bond details for a rental property, residential tenancy agreement concerning the rental property, a rates notice for the property identity certificate of the sponsor from Iran, birth certificate of the sponsor’s mother which specified her three children, a letter of employment for the review applicant from [Employer],

12. On 14 December 2018, the department requested that the visa applicant provide details of all members of her family who were in Australia. The visa applicant subsequently did so, and provided a letter dated 14 December 2018 where the visa applicant provided the following family members living in Australia:

    ·     [The review applicant], who is the sponsor and identified as the visa applicant’s niece

    ·     [Ms A], who is identified as the visa applicant’s niece (although the letter noted that she was currently in [Country] for work purposes)

    ·     [Ms B], who is identified as the visa applicant’s sister.

13. On 21 August 2020 the Tribunal wrote to the review applicant and invited her to attend a Tribunal hearing. The hearing invitation invited the applicant to provide the following information:

    ·     Full name and date of birth, dates of arrival of any other of your close relatives (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephews who have come to or visited Australia within the past 10 years.

    ·     Full name and date of birth, dates of arrival / visit of any other close relatives you have sponsored or invited to visit Australia within the past 10 years.

    ·     Updated information about the visa applicant’s employment and financial situation in their home country.

    ·     Any other information relevant to the visa applicant’s activities or commitments or relationships in their home country that would encourage them to return at the end of a visit.

    ·     Any information relating to any previous visa held by, or visa application made by, the visa applicant.

    ·     Any information concerning any other travel by the visa applicant outside their present country of residence.

14. On 30 August 2020 the review applicant provided the Tribunal with a completed ‘Response to hearing invitation form’. She initially indicated that the visa applicant would not participate in the hearing. The Tribunal informed her that it would like to speak to the visa applicant and she subsequently provided the contact information for the visa applicant overseas. The review applicant purported to send ‘latest income report, ownership of the house I am living in , which I am happy to put as bond in support my aunt’s([the visa applicant]) visa request. Also few bank statements which show [the visa applicant]’s most recent balance in her account’, but documents were attached to the email. The Tribunal followed this up with the applicant who then attached her own electricity bill, her own ATO income statement, and a transaction history of the review applicant’s account that she holds at the [Bank 2] in Iran, as well as an investment deposit certificate from the same financial institution.

15. The review applicant did not provide the full name and date of birth, dates of arrival of any other of your close relatives (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephews who have come to or visited Australia within the past 10 years, nor the full name and date of birth, dates of arrival / visit of any other close relatives you have sponsored or invited to visit Australia within the past 10 years as requested in the hearing invitation of 21 August 2020.

    Review applicant’s oral evidence at Tribunal hearing

16. The Tribunal asked the review applicant why she did not provide the information about close relatives who had come to Australian within the past 10 years, as requested in the hearing invitation of 21 August 2020. The review applicant told the Tribunal that she spoke to a registry employee who told her that if there was if there was anything new she would need to provide that. The review applicant said that she had already provided this information to the Tribunal.

17. The Tribunal noted that in the visitor visa application form, only the review applicant is mentioned as a contact in Australia. The review applicant said that when she applied for the visa, she was asked for further information and she provided this. The review applicant said that there was herself, her sister [Ms A], and her mother who were present in Australia. The review applicant also said that she had a brother living in Iran and that she was one of three siblings. The review applicant was asked whether she had any other family in Australia. The review applicant said that she had two children in Australia, and her former husband.

18. The review applicant said that she came to Australia as a dependent on her husband’s skilled visa. And she subsequently became an Australian citizen. Her two children are Australian citizens. She said that her sister [Ms A] came to Australia on a student visa and then applied for permanent residency. When the Tribunal asked what type of visa that was, she said it was a protection visa. The review applicant told the Tribunal that [Ms A] is presently in [Country], having left Australia in August 2018. The Tribunal asked the review applicant how her mother came to Australia. The review applicant said that her mother came to Australia on a visitor visa via [Ms A]’s invitation, and that her mother subsequently applied for a protection visa. Both her mother and sister’s protection claims were on the basis that they had converted to Christianity. The review applicant said that she was born a Muslim and she had not converted and was not involved with Christianity.

19. The Tribunal asked about the review applicant’s father. She told the Tribunal that her parents came to Australia together, but in 2013 her father left the family and they have no idea where he is at the moment. Her mother applied for divorce two years ago in Australia. The last time she saw her father was around June 2016 and she believes that he is not in Australia because he called her once and said he was back in Iran. After that, she never heard from him again.

20. The review applicant was asked how her aunt was going to fund her stay in Australia. The review applicant said that she was going to fund her aunt’s stay in Australia. The review applicant described her financial position as owning a property that is being paid off and being employed full time. Her pay is good, and she receives child support, so she was fine to fund her aunt. If that was the case, the Tribunal wondered why the review applicant had applied to the Tribunal for a fee reduction, so she did not have to pay the full cost of the review application. The review applicant said that at the time, she was a pensioner and heard she could get a concession, but she did not pursue the request. She was on a single parent payment. The Tribunal asked whether she was working at the time, and she said she was, but the income was less than what it is now. She had a big jump in her income.

21. The review applicant said that her aunt did not have any children in Australia. Her aunt had an incentive to return to Iran because her child needs 24/7 care and her husband cannot look after the child for a long time. Her aunt only has the one child in Iran.

22. The last time the review applicant saw her aunt was 3 years ago when the review applicant had a visit to Iran. The last time her mother saw the visa applicant was almost 6 years ago. This was before her mother came to Australia. The review applicant said that both her aunt and uncle are retired. They fund their living expenses from small investments in the stick market and her uncle receives a pension from his previous work. He worked for the government in the [specified] department.

23. The review applicant told the Tribunal that she knew her mother and sister’s immigration history would impact on the visa applicant’s application, that is why the review applicant applied to sponsor her mother. The visa applicant is the first person that the review applicant has invited to travel to Australia. The review applicant is not involved in her mother and sister’s situation. She is very close to her aunty and wishes to have her visit for a short time. As an Australian citizen, she has a right to invite a relative to come to Australia for a visit. She told the Tribunal that if the department required her to deposit a security to secure the visa she would do so. She would be prepared to deposit $30,000 of her savings. She was aware that if her aunty did not leave Australia at the end of her proposed visit, she would lose that money.

    Visa applicant’s oral evidence at Tribunal hearing

24. The visa applicant told the Tribunal that she wanted to visit Australia because it had been a long time since she saw her sister and her niece. The last time she saw her sister was 6 or 7 years ago in Iran. She last saw her niece in Iran when her niece returned for a visit.

25. The visa applicant plans to stay in Australia no longer than two weeks. Her husband is going to look after their daughter while the visa applicant is in Australia. Her husband is not currently working and has been retired for 10 years. The visa applicant and her husband fund their life in Iran through savings and pension payments. She said the couple jointly own a house.

26. The visa applicant was asked whether she had any fear of returning to Iran at the end of her proposed visit to Australia. She said that she will travel back to Iran because of her daughter. This did not answer the Tribunal’s question and the Tribunal repeated it. The visa applicant said that she would return to Iran because of her daughter and husband. Again, this did not answer the Tribunal’s question and the Tribunal repeated it. The visa applicant then said ‘no’. She questioned why she would fear returning to Iran as it is her home and her family is there. She did not have any intention to make a further visa application while she was in Australia. She had to return to Iran. She can afford to pay her own costs to Australia.

27. The visa applicant told her Tribunal that her religion is Islam. As far as she knows, her family in Australia are Muslim. She was asked about how her sister came to Australia. The visa applicant said that her niece went to Australia first and was divorced. Her sister went to Australia to be with her grandchildren. She knew this because that is what she had been told by her family. Her sister had not experienced any problems with the Iranian authorities or anyone else. None of the family had problems with the authorities. She is close to her sister.

    Concerns raised by the Tribunal at hearing with the review applicant

28. The Tribunal raised with the review applicant its concern that the review applicant’s mother had come to Australia on a visitor visa and applied for a protection visa. The Tribunal also noted that the review applicant’s sister also lodged a protection visa while she was in Australia. This suggested to the Tribunal that there was a chance that the visa applicant would follow the same course. In response, the review applicant said that her mother and sister’s decision to convert to Christianity was their own personal decision, she did not encourage them to do this. They wanted to convert, and the review applicant could not stop them as this was their personal wish. The review applicant is not part of it.

29. The Tribunal also raised its concern about the fact that the review applicant had not provided the details of family who had travelled to Australia in the past 10 years as requested by the Tribunal in its letter inviting her to the hearing. This suggested to the Tribunal that the review applicant wanted to hide this information from the Tribunal, and suggested to the Tribunal that the review applicant may wish to do so because the visa applicant planned to come to Australia on a visitor visa and lodge a protection visa, following the same course as the review applicant’s mother and sister. The review applicant disputed this. She said she missed the request for this information, and she believed that the Tribunal would have all the detail about her family members. There was nothing to hide. The then said that she thought she only needed to provide any ‘extra information’ because that is what a Tribunal staff member had told her.

    FINDINGS AND REASONS

30. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

31. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

32. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

33. The visa applicant has not previously travelled to Australia. Therefore, there is no past migration history to demonstrate, or not demonstrate, that the visa applicant has a genuine intention to enter Australia temporarily for the purpose of a family visit.

34. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

35. As the visa applicant has not previously travelled to Australia, there is no past migration history that can be used to demonstrate or not demonstrate compliance with previous visa conditions. The Tribunal accepts that there is no evidence that would demonstrate that the visa applicant would work in Australia or engage in any study or training in Australia. Whether the visa applicant would comply with condition 8531 is discussed later in this decision.

1. The Tribunal must also consider all other relevant matters (cl.600.211(c)).

2. The visa applicant is a married Iranian woman aged in her mid-[Decade]. She has told the Tribunal that she has no fear of returning to Iran at the end of her proposed visit to Australia.

3. The Tribunal was initially concerned that the Tribunal was not provided the information it requested from the review applicant about the arrival of family members to Australia in the past 10 years as requested in the hearing invitation. However, the Tribunal accepts that this was not a deliberate withholding of information from the Tribunal. Although the presence of family members in Australia was not included in the visitor visa application form (save for the review applicant), the Tribunal accepts that this information was provided when it was requested by the department. The Tribunal found the review applicant to be frank with the Tribunal and told the Tribunal about the circumstances in which her mother and sister came to remain in Australia.

4. The evidence is that the visa applicant is the mother of a [Age]-year-old woman who has a mental disability. She is cared for by the visa applicant and her husband. The visa applicant supports herself through the receipt of a pension. She has asked for a short trip to Australia, with a visa of up to 3 months, but indicated in the visitor visa application form, and in the oral evidence provided to the Tribunal, of a desire to come to Australia for a period of 2 weeks.

5. Although the Tribunal is concerned about the migration history of the visa applicant’s sister and visa applicant’s niece coming to Australia on temporary visas and then remaining in Australia through lodging protection visas, the Tribunal is conscious of the fact that the visa applicant is an older woman who has a adult child needing care in Iran, and a husband in Iran. She would not have any children in Australia which may act as an incentive to remain in Australia at the conclusion of her visit, so in this regard she is distinguishable from her sister. She has spoken of her need to return to Iran at the end of her proposed trip, that she does not intend to lodge any visas while she in onshore in Australia, and her oral evidence is that her sister and niece are still Muslim, which indicates that the information about the conversion has not been shared with the family in Iran. It would be curious in the extreme if the visa applicant came to Australia and lodged a protection visa.

6. The Tribunal is satisfied that the visa applicant will comply with visitor visa conditions, and that she will depart Australia in accordance with the end date of her visitor visa. As noted to the review applicant, the grant of the visitor visa is subject to the applicant satisfying all remaining criteria which is to be considered by the department, and the timing of the grant of the visitor visa is also a matter for the department. The decision to impose a security is also a matter for the department and not something that the Tribunal can direct to occur. However, any residual concerns the department may have about the visa applicant’s intentions would be adequately addressed by the imposition of a security in the amount offered by the review applicant, namely $30,000.

   CONCLUSION

7. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of cl.600.211 are met.

   DECISION

8. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   ·cl.600.211 of Schedule 2 to the Regulations.

   Nathan Goetz
   Member